More e-Discovery Trends for 2012 From Symantec, FTI

Each year, e-Discovery thought leaders and vendors offer up their predictions for the coming year. Already we’ve seen e-Discovery 2012 according to Daegis. Since then, we’ve talked with a few more in an effort to round out the themes that companies will be facing in the new year.

We spoke with Dean Gonsowski, counsel for e-Discovery at Symantec and Mike Kinnaman, senior managing director at FTI, about what we can expect to see more of when it comes to e-Discovery in 2012. Among their predictions, there was some common ground, as well as original themes.

Common Themes: e-Discovery 2012

You Say Technology-Assisted Review, I Say Predictive Coding

No matter what you call it, new technologies that make the review process easier are getting more attention. Both Symantec and FTI agreed that in 2012, predictive coding will gain speed. As companies accept that the review process takes more than just manpower, but also a technology efficient enough to review large amounts of data, across platforms and custodians, predictive coding will help reduce cost, time and risk.

For the past three years, FTI has conducted a survey based on interviews of inside counsel with responsibility for e-discovery. Though it has not officially released the results of its most recent survey, it did share some preliminarily insights. When it comes to predictive coding, 80% said that they are aware of predictive coding, but as to whether they plan to use it, only 20% indicated that they were very interested in it or already looking into it, while 47% expressed interest, but a wait-and-see approach.

It’s a Small World After All: e-Discovery Adopts Global Requirements

Governing Counsels in the US are coming to realize that it’s no longer necessary to analyze e-Discovery on a country-by-country basis. As well, “our” way of doing e-Discovery may not be the best, nor the most cost-effective. Recent investigations in the UK and its anti-bribery act have piqued an interest in global e-Discovery requirements, and as such, Symantec and FTI both seem to think that it will carry over into 2012. According to FTI’s preliminary survey data, General Counsel are handling more multinational matters. 57% said they had collected data overseas for a legal or regulatory matter. Of those, 58% said outside counsel handled local data privacy rules, while the remaining 42% said “data privacy didn’t come into play.”

Emerging e-Discovery Themes

Presumptive Rules Diminish Accuracy

It’s no longer about where email resides, but where the rest of your content does. There is so much data within organizations, and more of it is coming from new platforms, like the cloud, social media or enterprise platforms such as SharePoint. According to Gonowski, if you’re looking at only ten custodians, you could be missing out. It isn’t that limiting your custodians is a bad idea, it’s just that it presupposes that it will be enough. As data becomes less limited to just email, if you’re not casting a wide net, your review will be less accurate. Consequently, warns Symantec, if the data isn’t there, it will be lots harder (and riskier) to show why it was excluded in the first place.

Data-Driven Cost Savings

Now that many companies have been implementing some sort of e-Discovery process for a few years, they have more information about what is efficient and what is just too burdensome to contemplate. Just as Daegis suggested that more rules will be determined before the review process begins, Kinneman suggests that companies know what to negotiate for, what they can accommodate and what they are willing to risk. In the beginning, companies chose sides of the EDRM model, choosing either to be reactive or proactive in their policies. Now that they’ve had time to adjust and evolve, they are working to find the sweet spot that allows them to be just enough of both to be efficient enough to decrease costs, while keep risks at a minimum.

Don’t Hoard Your Data

Yes, storage may be cheap, especially if it’s on the cloud, but it can lead to bigger costs and liability risks if you let your data just pile up. Gonowski says that data hoarders will be under pressure to keep what is worth keeping and let the rest expire appropriately. Subsequently, Symantec also suggests that in 2012, backup tapes will become a greater liability. Tapes not used for disaster recovery aren’t worth saving if they don’t serve a purpose. If found, they can cause more trouble than their worth.

Social Media, Cloud Matters

For a while, it looked like social media could be ignored, but thanks to a few early adapters, social media with the enterprise is here to stay. For many, though, social media poses many challenges. As a result, FTI says that companies need to figure out how to access, categorize and collect social media, and the various other types of media that may reside within the cloud. Moreover, Kinneman says, companies that started within the last decade are more likely to have grown almost exclusively in the cloud, making it more important than ever to have policies that make it easy and efficient to search and discover.

Peel Back the Layers of e-Discovery in 2012

There are many layers to e-Discovery. One company can’t begin to tackle them all at once. The aim is that you’ll see these 2012 trends not as a checklist but rather as “what could be” list. Having a process implemented is most important, but as your company evolves, so will its ability to handle comprehensive elements. So go forth in to the New Year and resolve to gain better control of e-Discovery.

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